The Lawyers Weekly - January 21, 2011

SLAPP
Continued From Page 1

recommendations include a test for courts to quickly recognize a SLAPP, with the new legislation broadly defining the scope of protection to encompass communications on matters of public interest—and not be limited to communication directed to a public body as is the case with some American statutes.

Under the two-prong test, the defendant would have the burden of proving that the case involves the protected activity of public participation. If the subject matter of the action is shown by the defendant on a balance of probabilities to be communication on a matter of public interest, the onus would then be shifted to the plaintiff to prove the suit has substantial merit, that there are substantial grounds to believe that no valid defence exists, and that the harm suffered by the plaintiff outweighs the harm done to the public interest ( especially in freedom of expression) by allowing the action to continue.

The advisory panel also recom-
mends that remedies against
“inappropriate litigation” affecting
public participation be available
quickly and be distinct from that
which is now available under the
Rules of Civil Procedure. Under the
recommendations, the courts
should hear a motion for a remedy
for a SLAPP within 60 days. Until
the motion for a remedy is decided,
no further steps in the proceeding
may be taken except possibly an
injunction in the discretion of the
court where the plaintiff can estab-
lish the fact or serious threat of
irreparable harm. The unsuccessful
party should have a fast track right
to appeal to the Court of Appeal,
proposes the advisory panel. If the
plaintiff fails to satisfy the court, the
action should be dismissed with
costs on a full indemnity basis, and
the court should have the power to
award punitive damages.

The panel also recommended that qualified privil-

ior litigation counsel at Fasken
Martineau. “We thought it would
be useful for the legislator to sim-
ply crystallize that and state it.”
Organizations such as the
Public Interest Advocacy Centre
(PIAC) welcomed the proposals.
“We’re happy that there’s finally
some movement towards taking
this seriously,” remarked John
Lawford, a research analyst and
lawyer with PIAC. “In terms of
encouraging people to be public
interest advocates in their own
right, it’s a very good thing. It
doesn’t immunize anyone from
being sued if they are actually
libeling someone. So I think it’s a
good balance.”
But the true test remains, if
the Ontario government does
forge ahead with a new free-
standing statute, how the courts
will interpret it.

“There is no doubt that a great deal of discretion is left to the judiciary to act in these situations,” said Rogers. “We have given in the report the tools that a judge can use to act on. But it’s that discretion of the judiciary that ultimately will make this kind of legislation effective or not.” 

New Brunswick’s Progressive Conservative government has appointed prominent Tory lawyer Michel Leger of Shediac, N.B. to chair a review of the $2,500 cap for pain and suffering for minor injuries, and the definition covering soft tissue automobile injuries in the province.

Leger’s working group will hold public hearings to ascertain whether the seven-year-old system is working and whether current levels of coverage and compensation are appropriate.

Other members of the working group announced Jan. 11 by Justice Minister Marie-Claude Blais are: lawyers Stephane Viola and Nathalie Chiasson; Frances McConnachie for New Brunswick Consumers for Insurance Fairness; Bill Adams, Atlantic vice-president of the Insurance Bureau of Canada; Macgregor Grant of the Insurance Brokers Association of New Brunswick; Moncton pain specialist Dr. Richard Dumais; and Fredericton physiotherapist Kathy Warren. New Brunswick’s insurance consumer advocate Ronald Godin will also be asked to participate.

Judicial council expresses
concern over judge’s behaviour

CONTENTS

NEWS

Cross-burning a hate crime

AN ANTI-SLAPP advisory panel in Ontario pushes for an expedited review process.............................1

ARCHAEOLOGICAL ASSESSMENTS and aboriginal consultation ............................... 15

DONALEE MOULTON HALIFAX

BUSINESS & CAREERS

CROSS-BURNING IS recognized as a hate crime by a N.S. court ...2

OFFICE SPACE: Big law firms still opt to have offices downtown ... 20

A LOOK at the Supreme Court’s upcoming winter session ............ 3

GARY MITCHELL on using social media to raise your profile.......... 21

DUFF’S DEAL for democracy....... 4

OPINION FOCUS

JEFFREY MILLER....................... 5

Intellectual Property TRADE-MARK OWNERS must justify non-use.............................. 9

ENABLEMENT REMEDY targets secondary infringement.............. 10

TOP COURT to clarify test for similar trade-marks .................... 11

For the first time in Canada, a cross-burning has been legally recognized as a hate crime. Earlier this month (January), the Supreme Court of Nova Scotia sentenced Nathan Rehburg to six months for criminal harassment and four months for inciting hatred. (His brother Justin was later sentenced to two months in jail for his participation in the crime.)

The sentence is both ordin-
ary and extraordinary, experts
contend. Luke Craggs, a lawyer
with Newton & Associates in
Dartmouth who represented
Rehburg, noted that the existing
case law for crimes of mischief,
promotion of hate, or harass-
ment with an element of racism
is six to 12 months in jail.

The Canadian Judicial Council (CJC) says Nova Scotia Supreme Court Justice Ted Scanlan should not have accompanied his then-girlfriend (now wife) when she complained to police about what she alleged was her ex-husband’s threatening behaviour.

A CJC disciplinary panel told the judge his presence, even though it was in his personal capacity, could be perceived, by an outside person, as an attempt by a judge to use the prestige of judicial office to influence officials or seek a certain outcome. Any comments made during such a meeting, whether spoken seriously or in humour, can be easily misinterpreted, said the panel which stressed that judges should generally avoid such situations.

The panel said the judge did not willfully try to influence the RCMP officers, nor did he act in bad faith, so no further action was needed.

HOW CLEANTECH companies can minimize patent risks ................. 12

DEPARTMENTS

A CAUTIONARY note for trade-mark licensors............................ 13

Announcements. . . . . . . . . . . 23

Careers . . . . . . . . . . . . . . . . . 20

Classified Ads . . . . . . . . . . . . 19

Lawddities. . . . . . . . . . . . . . . 11

Legal Briefs. . . . . . . . . . . . . . .2

Names in the News. . . . . . . . . 4

Weekly Digest. . . . . . . . . . . . 16

Correction

In our Dec. 10, 2010 issue, the caption below the front page photo incorrectly stated that David Gomboc was the client of the lawyers in the photo. In fact, their client’s name was Daniel Gomboc, who was correctly identified in the rest of the story. We apologize for the error.

Marriage commissioners ruling should stand, says minister

Environmental Law CLIMATE CHANGE losers look to courts to recoup losses.............. 14

RICHES, MCKENZIE & HERBERT LLP

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Saskatchewan Justice Minister Don Morgan says he is recommending that the provincial Cabinet not appeal an advisory opinion of the Saskatchewan Court of Appeal. The court ruled Jan. 10 that both of the draft legislated exemptions for marriage commissioners who object to performing same-sex marriage ceremonies on religious grounds are unconstitutional. Morgan said the government will take some time to review the decision and decide how to proceed.